United States of America v. David Myrie

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0044p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID MYRIE,
Defendant-Appellant.
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No. 24-2045
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:23-cr-20331-1—Jonathan J.C. Grey, District Judge.
Decided and Filed: February 17, 2026
Before: BOGGS, NALBANDIAN, and MATHIS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids,
Michigan, for Appellant. Scott A.C. Meisler, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., William J. Vailliencourt, Jr., UNITED STATES ATTORNEY’S OFFICE,
Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. David Myrie appeals his conviction under 8 U.S.C. § 1326 for
unlawfully reentering the United States after prior removals. He claims that § 1326, a facially
race-neutral law, violates equal protection under the Fifth Amendment’s Due Process Clause by
discriminating against Mexican and other Latino immigrants. He argues that the statute’s
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predecessor—the Undesirable Aliens Act of 1929—was enacted with discriminatory intent,1 and
that § 1326, first codified as part of the Immigration and Nationality Act (INA) of 1952 and
amended several times thereafter, perpetuates that taint because Congress failed to affirmatively
repudiate the racist intent of the 1929 Act.
Eight of our sister circuits have addressed similar constitutional challenges to § 1326 and
all have rejected them.2 For the reasons set forth below, so do we.
I. Background
Myrie, a native and citizen of Jamaica, entered the United States without inspection in
1996 and was first ordered removed by an immigration judge in 1997. Before he was actually
removed in December 2002, he was convicted of firearms and drug offenses in two different
states. Thereafter Myrie unlawfully returned to the United States multiple times and has been
ordered removed from the United States on at least five different occasions. Myrie has a lengthy
criminal record dating back two decades. In addition to immigration offenses, he has been
arrested for drugs, weapons, escape, and money laundering, resulting in six felony convictions.
Myrie was most recently removed in April 2023. In May 2023, he was caught at the
Ambassador Bridge in Detroit, Michigan, and charged with unauthorized entry by an alien who
had been removed subsequent to conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). This is Myrie’s eleventh felony conviction and fifth felony immigration
conviction in violation of § 1326.
1The government “assumes for the sake of argument that the 1929 Act was motivated in part by
discriminatory intent.” (Appellee Brief at 23 n.6)
2See United States v. Suquilanda, 116 F.4th 129, 139 (2d Cir. 2024); United States v. Wence, No. 22-2618,
2023 WL 5739844 at *3 (3d Cir. Sep. 6, 2023) (unpublished); United States v. Sanchez-Garcia, 98 F.4th 90, 94 (4th
Cir. 2024); United States v. Barcenas-Rumualdo, 53 F.4th 859, 863 (5th Cir. 2022); United States v. Viveros-
Chavez, 114 F.4th 618, 622 (7th Cir. 2024), cert. denied, 145 S. Ct. 1097 (2025); United States v. Carrillo-Lopez, 68
F.4th 1133, 1138 (9th Cir. 2023), cert. denied, 144 S. Ct. 703 (2024); United States v. Amador-Bonilla, 102 F.4th
1110, 1113 (10th Cir. 2024); United States v. Ferretiz-Hernandez, 139 F.4th 1286, 1289 (11th Cir. 2025), cert.
denied, _ S. Ct. _, 2026 WL 79803 (U.S. Jan. 12, 2026).

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No. 24-2045 United States v. David Myrie Page 3
Myrie moved to dismiss on grounds that § 1326 violates the equal-protection guarantee
of the Fifth Amendment by discriminating against Mexican and other Latino immigrants.3
Applying Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977), the district
court held that Myrie failed to explain how the legislative history, intent, and purpose of the 1929
Act and its predecessor, the National Origins Act of 1924, constituted the legislative history of
the 1952 INA. Further, the court held that Myrie failed to offer evidence “that Mexican and/or
Latino persons are disproportionately represented in convictions for illegal reentry under
§ 1326.” And, even if Myrie could show disparate impact, he failed to establish that such impact
stems from “an invidious discriminatory purpose.” Finally, the district court rejected the idea
that discriminatory intent motivated Congress when it enacted § 1326, setting forth and adopting
the “exhaustive analysis” of the Ninth Circuit in United States v. Carrillo-Lopez, 68 F.4th 1133
(9th Cir. 2023).
After denying Myrie’s motion to dismiss, the district court calculated his sentencing
guidelines range at 51 to 63 months of imprisonment and imposed a sentence of 51 months.
Myrie timely filed this appeal.
II. Standard of Review
We review de novo the district court’s refusal to dismiss an indictment on constitutional
grounds. United States v. Gailes, 118 F.4th 822, 824 (6th Cir. 2024). Where, as here, the district
court’s constitutional ruling turned on a factual determination—that Myrie failed to show that
§ 1326 was motivated by a discriminatory purpose—that determination is a factual finding
reviewed for clear error. See Brnovich v. DNC, 594 U.S. 647, 687 (2021); Abbott v. Perez, 585
U.S. 579, 607 (2018); see also United States v. Grenier, 513 F.3d 632, 635 (6th Cir. 2008)
(explaining that “[t]he standard of review to be applied for a motion to dismiss an indictment is
somewhat unclear.”). Factual findings are clearly erroneous if “the reviewing court on the entire
3The district court identified Myrie as “a Latino citizen of Jamaica.” However, the government’s
complaint and presentence report do not identify Myrie as Latino. Myrie’s brief on appeal and his Motion to
Dismiss the Indictment do not address Myrie’s ethnicity. Regardless, while the interplay between Myrie’s ethnicity,
however defined, and Jamaican nationality is ambiguous “[w]e must accept the district court’s factual findings
unless they are clearly erroneous.” United States v. McCloud, 935 F.3d 527, 532 (6th Cir. 2019). Here, no evidence
in the record refutes that conclusion, so the district court did not clearly err.

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evidence is left with the definite and firm conviction that a mistake has been committed.”
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985).
III. Discussion
The Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or
property, without due process of law.” U.S. Const. amend. V. The Due Process Clause
“contains an equal protection component prohibiting the United States from invidiously
discriminating between individuals or groups.” Washington v. Davis, 426 U.S. 229, 239 (1976).
When a statute makes an express classification on the basis of race, it is subject to strict scrutiny
and “is presumptively invalid and can be upheld only upon an extraordinary justification.” Shaw
v. Reno, 509 U.S. 630, 643-44 (1993). In contrast, a facially neutral statute, such as § 1326, only
violates the Fifth Amendment if it produces a disparate impact and if a discriminatory purpose
was a motivating factor for its enactment. See Arlington Heights, 429 U.S. at 265-66.
However, as every circuit to address this issue has recognized, it is unclear whether
Arlington Heights applies here. In these cases, the government argues that immigration laws
enacted under Congress’s plenary power over immigration are subject only to a rational-basis
review, (Appellee. Brief at 32-39) while criminal defendants typically argue “that § 1326 is a
domestic criminal statute—not a rule of admission or exclusion—and thus subject to ordinary
equal protection analysis.” United States v. Ferretiz-Hernandez, 139 F.4th 1286, 1291-92 (11th
Cir. 2025). Like our sister circuits, we do not need to resolve this dispute because Myrie’s equal-
protection claim fails even if we apply the Arlington Heights framework. Ibid.
To prove discriminatory intent, plaintiffs must “prove by a preponderance of the evidence
that racial discrimination was a substantial or motivating factor in the adoption of [the challenged
provision].” Hunter v. Underwood, 471 U.S. 222, 225 (1985) (quoting Underwood v. Hunter,
730 F.2d 614, 617 (11th Cir. 1984)). “Determining whether invidious discriminatory purpose
was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence
of intent as may be available.” Arlington Heights, 429 U.S. at 266. Factors to consider in that
inquiry include (1) the historical background of the decision to enact the law, (2) the specific
sequence of events leading up to the decision, (3) departures from the normal procedural

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sequence followed by decision-makers, (4) substantive departures from factors usually
considered important by decision-makers that would strongly favor a contrary decision, and
(5) legislative or administrative history. Id. at 267-68. Lawmakers must have “selected or
reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its
adverse effects upon an identifiable group.” Pers. Adm’r. of Mass. v. Feeney, 442 U.S. 256, 279
(1979).
Under Arlington Heights, Myrie bears the burden of showing that § 1326 was enacted for
a discriminatory purpose and has a disparate impact. In his briefing on appeal, Myrie never tries
to establish discriminatory intent using the Arlington Heights framework to analyze § 1326.
(Appellant Brief at 7) In his motion to dismiss the indictment, Myrie did apply the Arlington
Heights framework to argue the discriminatory intent of the 1929 Act, but he provided almost no
evidence addressing § 1326. On appeal, Myrie does not provide any evidentiary support under
the Arlington Heights framework—no historic background, no sequence of events leading up to
the passage of §1326, no departures from normal procedural sequence, no substantive departures,
and no legislative or administrative history. Rather, he merely asserts his predicate supposition
that § 1326 is a “simple recodification” of the 1929 Act with no supporting evidence. His
argument is based solely on the assumption that § 1326 recodifies the 1929 Act, a presumption
repudiated by the Ninth Circuit’s meticulous and thorough legislative-history analysis of § 1326,
Carrillo-Lopez, 68 F.4th at 1143-50, and further amplified by the Second, Third, Fourth, Fifth,
Seventh, Tenth, and Eleventh Circuits. See cases cited supra note 2.
In arguing that § 1326 is a “simple recodification” of the 1929 Act, thus bringing with it
the intent of the earlier law, Myrie asks this court to hold that Congress must expressly disavow
racism when it reenacts a prior law that was shown or assumed to be racist in origin and
enforcement. (Appellant Brief at 12) This request “rests on a misunderstanding of how
legislative intent works.” Ferretiz-Hernandez, 139 F.4th at 1293. Courts begin from the
presumption that legislatures act in good faith. Miller v. Johnson, 515 U.S. 900, 916 (1995);
Abbott, 585 U.S. at 603. The Supreme Court has held that this good-faith presumption is not
changed by a finding of past discrimination which “cannot, in the manner of original sin,

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condemn governmental action that is not itself unlawful.” City of Mobile v. Bolden, 446 U.S. 55,
74 (1980) (plurality opinion).
To that end, the Supreme Court has specifically held that a future legislature has no “duty
to purge its predecessor’s allegedly discriminatory intent.” Abbott, 585 U.S. at 605-06; see
United States v. Sanchez-Garcia, 98 F.4th 90, 99 (4th Cir. 2024); Carrillo-Lopez, 68 F.4th at
1151. Further, “the views of an earlier legislature are generally not probative of the intent of a
later legislature, particularly when the subsequent legislature has a substantially different
composition.” Carrillo-Lopez, 68 F.4th at 1140 (citation modified). Here, “Congress
experienced a more than 96 percent turnover of its personnel” in the twenty-three years between
enactment of the two laws. Id. at 1150.
Myrie relies on a case involving the revision and recodification of the Judicial Code in
1948 for the proposition that courts should not infer that “Congress, in revising and consolidating
the laws, intended to change their effect unless, such intention is clearly expressed.” Fourco
Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 227 (1957). However, the 1952 INA was
not a recodification project, “but rather a broad reformulation of the nation’s immigration laws
. . . . Section 1326 itself incorporated provisions from three acts[,] made substantial revisions
and additions,” and was substantially different from the 1929 Act. Carrillo-Lopez, 68 F.4th at
1151. And since 1952, “Congress has revisited and amended § 1326 repeatedly. Each time, it
expanded the statute's reach, increased penalties, or modified provisions in accordance with
changing law.” Ferretiz-Hernandez, 139 F.4th at 1296. Myrie does not argue that that those
reenactments were racially motivated, and “[i]n the end, ‘[t]he further removed that § 1326
becomes from [the 1929 Act] by amendment, the less it retains its odor.’” Ibid. (quoting
Barcenas-Rumualdo, 53 F.4th at 866).
The district court also held that Myrie failed to offer evidence “that Mexican and/or
Latino persons,” however defined, are disproportionately represented in convictions for illegal
reentry under § 1326. On appeal, Myrie argues that in his motion to dismiss “[h]e pointed out
statistics showing that Mexicans and other Latinos make up a large proportion of those arrested
at the border for illegal entry.” (Appellant Brief at 11-12) However, an obvious geographic
reason for any disproportionate impact of immigration laws on “Latinos” undermines any

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inference of discriminatory motive. See Carrillo-Lopez, 68 F.4th at 1153. As the Supreme
Court has noted, “because Latinos make up a large share of the unauthorized alien population,
one would expect them to make up an outsized share of recipients of any cross-cutting
immigration relief program.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S.
1, 34 (2020) (opinion of Roberts, C.J.). “Were this fact sufficient to state a claim, virtually any
generally applicable immigration policy could be challenged on equal protection grounds.” Ibid.
Here, Myrie has presented no evidence that discriminatory intent was a reason for the passage of
§ 1326. Even if § 1326 has a disparate impact on “Mexicans and other Latinos,” that is not
sufficient to state a plausible equal-protection claim.
IV
The legislative history of the 1929 Act is not the legislative history of § 1326, most
obviously because § 1326 incorporated portions of three preexisting statutes, including but not
limited to the 1929 Act. Further, the Supreme Court in Abbott rejected the idea that a future
legislature must specifically disavow or purge its predecessor’s discriminatory intent. Abbott,
585 U.S. at 605-06. Instead, the burden lies with a challenger to show that the relevant
legislation—section 1326—was enacted with discriminatory purpose. Myrie, ignoring the
Arlington Heights framework, failed to establish discriminatory intent. Having failed to do so,
we are not left with the definite and firm conviction that a mistake has been committed by the
district court. Put simply, “the statute before us is not the unlawful reentry provision in the 1929
Act; it is § 1326, enacted in 1952 and amended repeatedly thereafter. That distinction is
dispositive.” Ferretiz-Hernandez, 139 F.4th at 1293. Myrie has failed to show that
discriminatory intent was a purpose of the enactment of § 1326.
Accordingly, we AFFIRM the district court’s judgment.

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